Arifin Zakaria JCA:-

Background

This is an appeal against the decision of the learned High Court Judge in allowing in part the respondent/plaintiff's claim against the 1st and 2nd appellants. The 2nd appellant had since passed away and his estate had discontinued the appeal, therefore, we are only left with the appeal of the 1st appellant. We dismissed the appeal and we now give our reasons.

Facts

The 1st appellant and his two brothers, Teh Seng @ Teh Eng Woon (2nd appellant) and Teh Eng Choo were co-owners of 4 pieces of land namely:-

(i) CT No. 1760 : Lot 1128,

(ii) Grant No. 3536 : Lot 1149,

(iii) Grant No. 3538 : Lot 1148 and

(iv) Grant No. 3539 : Lot 1124,

all in Mukim Sabai, Daerah Bentong, Pahang ("the said lands"). The respondent is the son of Teh Eng Choo and is, therefore, the nephew of the 1st and 2nd appellants. The 1st appellant had 5/8 shares over the said lands, while the 2nd appellant and Teh Eng Choo had 1/8 and 2/8 shares respectively.

They decided to dispose of the said lands. Sometime in January 1995 they called the respondent to the 1st appellant's shop and requested the respondent to find buyer for the said lands. An agreement was then drawn up authorizing the respondent to sell the said lands. This agreement is produced as exh. P1 ("the agreement"). Under the agreement the sale price is stated as RM40,000 per acre and the respondent will be paid a commission of 2% from the total sale price. It is further provided that in the event the respondent is able to sell the said lands above RM40,000 per acre then the additional value shall belong to the respondent.

The respondent then passed the word round of the offer for sale of the said lands. Through his brother-in-law and someone named Leong, the respondent succeeded in obtaining a purchaser for the first three pieces of the said lands. This appeal is only concerned with the sale of these three pieces of the said lands. They were sold for a total sum of RM7,614,475 and the said sum was paid to the owners according to their respective shares. This claim by the respondent is for commission and the additional sum due to him under the agreement.

Issues And Findings

Both before us and in the court below the 1st appellant contended that the agreement P1 was illegal, null and void and consequently not enforceable in law. Reliance was placed on ss. 22B and 22C of the Valuers, Appraisers And Estate Agents Act 1981 ("the Act") and s. 11 of the Contracts Act 1950. The 1st appellant's contention was that as the respondent was not a registered real estate agent and not authorised under the Act to undertake estate agency practice, therefore, the actions and steps taken by the respondent in the sale of the said lands was contrary to law. It follows, therefore, that the agreement is not enforceable against the appellant.

The relevant provisions of ss. 22B and 22C of the Act state:-

22B. Estate agency practice

(1) Subject to the provisions of this Act, a registered estate agent who has been issued with an authority to practise by the Board shall be entitled to practise his profession and shall be authorised to undertake estate agency practice.

22C (1) No person shall unless he is a registered estate agent and has been issued with an authority to practise under section 16:-

(a) practise or carry on business or take up employment under any name, style or title containing the words "Estate Agent". "House Agent'', "Property Agent". "Land Agent", "House Broker" or the equivalent thereto, in any language or bearing any other word whatsoever in any language which may reasonably be construed to imply that he is a registered estate agent.

(aa) carry on business or take up employment as an estate agent;

(b) ...

(c) undertake any of the work specified in section 22B; or

(d) be entitled to recover in any court any fees, charges or remuneration for any professional advice or services rendered as an estate agent.

It is not in dispute that the respondent in the present case was no